A Prevailing Party Can Still Be a "Sore" Winner on Appeal under CPLR 5501(a)(1); Raising Alternative Arguments That Necessarily Affect the Final Judgment to Ensure Winning on Appeal

Article excerpt

There's an old sporting adage in competition that says, basically, don't be a "sore loser"; however, there is no such advice for winners. This appears to hold true in New York civil litigation. After a losing party has just expended a significant amount of time, effort, and money in litigating and losing before a lower court, the prevailing party can force its adversary to address not only the substantive arguments concerning the underlying judgment they just lost, but can further assail the losing party with a multitude of alternate issues that "necessarily affect" the final judgment; and matters that "necessarily affect" the judgment can be completely different grounds to affirm the final judgment on appeal. (1) Rather than making losing any less distressing, New York's Civil Practice Law and Rules ("CPLR") empower a winning party to relitigate any number of issues that were initially decided in favor of the losing party below, to ensure that its final victory stands on appeal.

There's a broad scope of issues that a prevailing party can raise on its adversary's appeal from final judgment in New York civil litigation. This article discusses the necessary "aggrievement" for a winning party to be entitled to raise issues on appeal generally, as well as the circumstances in which a prevailing party can assert alleged errors below that "necessarily affect" the final judgment--beyond the issues involved in the final judgment itself--as alternative grounds to prevail on appeal under CPLR 5501.

I. "AGGRIEVED" UNDER CPLR 5511

A. The Requirement of Being "Aggrieved" to Appeal

CPLR 5501 addresses the scope of appellate review on appeals from final judgments in civil judicial proceedings for the Appellate Divisions of the Supreme Court, their Appellate Terms, and the New York State Court of Appeals. (2) The appellate authority in CPLR 5501 extends to a litany of issues on appeal from a final judgment, including, inter alia: remarks made by a "judge to which the appellant objected"; "any order denying a new trial or hearing which has not previously been reviewed by the court to which the appeal is taken"; "any ruling to which the appellant objected or had no opportunity to object or which was a refusal or failure to act as requested by the appellant"; and, relevant here, "any non-final judgment or order which necessarily affects the final judgment." (3) However, before a party can generally invoke the review under CPLR 5501, the party must be considered properly "aggrieved."

The CPLR states that only "[a]n aggrieved party or a person substituted for him may appeal from any appealable judgment or order." (4) There is no definition provided for the word "aggrieved" in CPLR 5511. Rather, "[w]hen the revisers of the laws on civil practice were in the process of creating the CPLR, they were unable to formulate a definition for the word 'aggrievement' and they determined to leave that definition to case law." (5) The Court of Appeals helped fill that void in Parochial Bus System, Inc. v. Board of Education of New York. (6) The Court in Parochial Bus explained that, "[g]enerally, the party who has successfully obtained a judgment or order in his favor is not aggrieved by it, and, consequently, has no need and, in fact, no right to appeal." (7) This is because "the successful party has obtained the full relief sought," and therefore "he has no grounds for appeal or cross appeal." (8) Although a party that has obtained its requested relief cannot generally appeal under CPLR 5511, "[t]his rule is not inflexible." (9)

A "successful party may appeal or cross-appeal from a judgment or order in his favor if he is nevertheless prejudiced because it does not grant him complete relief." (10) The courts have identified "prejudice" or incomplete relief as including: "situations in which the successful party received an award less favorable than he sought or a judgment which denied him some affirmative claim or substantial right"; (11) and where "a specific finding at trial might prejudice a party in a future proceeding by way of collateral estoppel"; (12) or when a party is not granted the primary relief requested, but is still granted relief requested in the alternative. …